R v D, VF - [2018] SADC 89

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v D, VF
[2018] SADC 89
Reasons for Ruling of His Honour Judge Beazley
20 August 2018
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
Accused charged with sexual offences against two complainants T and M - application by accused for a separate trial of the counts involving T on the one hand and the counts involving M on the other on the basis that the evidence of each complainant is not cross admissible on the respective counts involving the other complainant - principles applying to the application for separate trials in sexual cases considered.
HELD: Application by the accused refused.
The prosecution served upon the accused a notice of its intention to adduce discreditable conduct evidence from three witnesses B, P and R, who are not complainants in the subject trial. Each proposes to give evidence as to alleged sexual acts committed by the accused against them. The accused has previously pleaded guilty to offences against them, but on a limited basis.
HELD: While the evidence of the proposed witnesses was prima facie of strong probative value, the evidence of each of them is excluded, inter alia, because its permissible use could not be kept sufficiently separate and distinct from an impermissible use and no directions, in the circumstances, could remove the appreciable risk that the evidence would be used by the jury for an impermissible propensity purpose.
District Court Rules 2014 Rule 49(1); Criminal Law Consolidation Act 1935 s 278; Evidence Act, 1929 ss 34P, 34R, 34S, referred to.
Hughes v The Queen [2017] HCA 20; IMM v The Queen [2016] HCA 14; McPhillamy v R [2017] NSWCCA 130, [2018] HCA T. 73 & [2018] HCA T. 141; RBH v The Queen [2011] VSCA 121; Huggins v The State of WA [2018] WASCA 61; R v March [2014] SASCFC 54; R v Maiolo (No 2) [2013] 117 SASR 1; R v N, SH [2010] SASCFC 74; R v C, CA [2013] SASCFC 137; R v M, JJ [2013] 117 SASR 81; R v Ricciardi [2017] SASCFC 128; R v Liddy [2002] 81 SASR 22; R v M, BJ [2010] 110 SASR 22; R v Bridger [2013] SASC 180; R v C, G [2013] SASCFC 83; R v Bonython-Wright [2013] SASCFC 87; Hoch v The Queen (1988) HCA 50; Rapson v R [2014] VSCA 216; R v McGee & McGee [2008] 102 SASR 318; Gilhamv The Queen [2007] NSWCCA 323, and [2013] NSWCCA 131; Pfennig v The Queen [1995] CLR 461; Velkoski v The Queen [2014] VSCA 121, considered.

R v D, VF
[2018] SADC 89
Introduction

V, F D (‘the defendant’) is charged on Information dated 22 September 2017 with seven counts against two complainants, respectively T and M, particularised as follows:
·As against T, two counts of Indecent Assault; and one count of Gross Indecency between 22 September 1991, and 3 October 1991, at Aldgate; and
·As against M, one count of Rape or alternatively one count of Unlawful Sexual Intercourse; one count Indecent Assault; and one count of Gross Indecency between 1 March 1993 and 1 December 1993 at Victor Harbor.
T, who was born on 7 April 1977, and, M, who was born on 25 February 1979 are brothers. Each were employees of the defendant, in a café and catering business at Victor Harbor. T was aged approximately 14 years; while M was aged approximately 13 years respectively at the times of the alleged offences against them.
·Voir Dire
The trial of the seven counts against the accused is listed to commence on 27 August 2018. The Court ordered that a voir dire be conducted to determine two matters prior to the commencement of the trial, namely:
·The question as to whether the counts involving T ought to be the subject of a separate trial from those involving M.
·The admissibility of discreditable conduct evidence concerning offences allegedly committed by the defendant against three proposed witnesses prior to the alleged offences against T and M.
Each of those matters involves issues of some importance. Some of those issues have been the subject of a recent decision of the High Court of Australia, in Hughes v The Queen.[1]
[1] [2017] HCA 20.
In that case the Court, by a 4/3 majority resolved a marked difference in the test for admissibility employed by the Courts of Criminal Appeal in NSW, and Victoria respectively. In the Victorian case of Velkoski v The Queen,[2] that Court of Appeal held that for tendency evidence to be admitted it must possess sufficient common or similar features with the conduct in the charge in issue so as to demonstrate a pattern that cogently increases the likelihood of the occurrence of that conduct.
[2] [2014] VSCA 121.
It was critical of the test in NSW as being too low a threshold for the admission of tendency evidence. The NSW Court of Appeal had held that the test was whether the evidence had significant probative value, and does not depend upon the evidence exhibiting ‘striking similarities or even closely similar behaviour’. The respective decisions were based upon the uniform Evidence Act. The High Court held that the Victorian test was ‘an unduly restrictive approach to the admission of tendency evidence’. It is sufficient that the tendency evidence had significant probative value in relation to the proof of each count on the Information.
On 9 August 2018, the High Court heard argument on matters relevant to the second issue of admissibility of tendency evidence, in McPhillamy v The Queen.[3] It reserved its decision. It would have been prudent to have awaited the decision of the High Court, as it involves many of the issues raised in this voir dire. However given the short period to the date for trial this course was not open.
·The issues
[3] [2017] NSWCCA 130; [2018] HCA T.73 & [2018] HCA T. 141.
As to the first issue, the defendant, by application dated 16 October 2017, seeks orders that the 3 counts involving T, (counts 1, 2 and 3); be severed from the 4 counts involving M (counts 4, 5, and 7), and that the respective counts involving T be tried separately from those involving M.
The Director of Public Prosecutions opposes the orders sought by the defendant. He asserts that the evidence of each complainant, and indeed the three other proposed witnesses is cross admissible on all 7 counts on the Information.
The resolution of that issue is dependent upon whether the evidence of each complainant, T and M, is cross admissible on all of the seven counts on the Information.
As to the second issue, the Director of Public Prosecutions, on 27 November 2017, served, notice upon the defendant of his intention to adduce discreditable conduct evidence. He gave notice of his intention to call the three proposed witnesses, to whom I will refer as B, P and R, who would each give evidence that the defendant had committed sexual offences against each of them, in the course of their respective employment with the defendant between August 1990 and March 1991.
Each of B, P, and R, were complainants in previous criminal proceedings brought against the defendant. In those proceedings the defendant was charged on Information with 9 counts of sexual offending involving B, P and R. The defendant pleaded guilty to the offences in 1996, but on a limited basis which followed negotiations.
It is trite that evidence of a conviction, of itself, in other proceedings against an accused person does not establish the factual circumstances underlying that conviction.[4]
[4] See R v Forrest (unreported decision of Court of Criminal Appeal) per King CJ.
The evidence of those three witnesses, as sought to be led by the prosecution pursuant to s 34P of the Evidence Act, includes allegations not the subject of the defendant’s pleas of guilty in 1996, and did not form the basis of sentencing.
It is now established that the principle of incontrovertibility has no application to facts, even if found by a sentencing Judge, in sentencing proceedings. See R v March;[5] Gilham v the Queen,[6] Huggins v State of WA;[7] and RBH v The Queen.[8]
[5] [2014] SASCFC 54.
[6] [2007] NSWCCA 323.
[7] [2018] WASCA 61.
[8] [2011] VSCA 121.
The prosecution proposes to call each of B, P and R to depose to the full allegations of the defendant’s criminal conduct on those 9 counts. It seeks to establish that ‘the defendant had a strong sexual interest in his young male employees, and was driven to act upon his sexual impulses in particular circumstances and in a particular manner’.
There is likely to be a high degree of probative value where the evidence of admitted offending is sought to be led, which supports the proof of a fact that makes up the charged offence.[9]
[9] See R v March, supra at [40], and Hughes v The Queen, supra at [41].
The defendant submits that all of the proposed evidence of B, P, and R ought to be excluded.
·Joinder of the counts
The subject Information involves more than two counts charging sexual offences involving different alleged victims, Section 278 of the Criminal Law Consolidation Act 1935 (the Act) provides:
278—Joinder of charges
(1) Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
(2) Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.
(2a) Despite subsection (2) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a) subject to paragraph (b), those counts are to be tried together;
(b) the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim. (my emphasis)
(3) This section does not affect any other provision of this Act or any other Act permitting more than 1 charge to be joined in the same information.
(4) In this section—
sexual offence means—
(a) an offence against section 48, 48A, 49, 50, 51, 56, 58, 63B, 68 or 72; or
(b) an attempt to commit, or an assault with intent to commit, any of those offences; or
(c) a substantially similar offence against a corresponding previous enactment; or
(d) an offence against the law of the Commonwealth, another State or a Territory corresponding to an offence referred to in a preceding paragraph. [10]
[10] While s 278 of the Act was replaced by s 102 of the Criminal Procedure Act, 1921, it remains in force pursuant to the transitional provisions in s 41 of the Summary Procedure (Indictable Offences) Amendment Act, 2017.
There can be no dispute that all seven counts were properly joined in the one Information, pursuant to that section, as the seven counts allege a series of offences of the same or similar character.
·Whether counts 1 - 3 inclusive ought be tried separately from counts 4 – 7 thereof
The Principles
The starting point in s 278(2a)(a) of the Act is that where two or more counts charge sexual offences involving different complainants, those counts should be tried together, save that the Court may order a separate trial of a count if, and only if, the evidence on that count is not admissible in relation to the counts relating to the other complainant.
If the defendant cannot establish that the evidence sought to be adduced is not cross-admissible, then he will not be able to establish prejudice and embarrassment in his defence.
The defendant submits that the evidence as to counts 1 to 3, with respect to T, does not possess sufficient features common to the sexual offending allegedly committed against the complainant M in counts 4 to 7, to disclose a nexus or underlying unity in the commission of the offences by the defendant such as to render the evidence as to counts 1 to 3, cross-admissible in relation to counts 4 to 7.
It is well established that the discreditable conduct provisions, in s 34P of the Evidence Act, ‘govern all aspects of a trial including that relating to the determination of the severance of counts’.[11]
[11] R v Maiolo (No 2) (2013) 117 SASR 1 at [131].
Accordingly, for the evidence of one complainant to be cross admissible in respect of the proof of a count involving another complainant, the evidence must be admissible pursuant to s 34P of the Evidence Act 1929.
However when considering the question of admissibility at this stage, the Court must not consider the question as to whether the evidence may be the result of collusion or concoction, nor whether there is a reasonable explanation consistent with the innocence of the defendant.[12]
[12] See Evidence Act s 34S.
Section 34P provides:
34P—Evidence of discreditable conduct
(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b) is inadmissible for that purpose (impermissible use); and
(c) subject to subsection (2), is inadmissible for any other purpose.
(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4) Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5) The court may, if it thinks fit, dispense with the requirement in subsection (4).
The principles governing the cross-admissibility of evidence and orders for the separate trial of counts of sexual offences have been the subject of a number of recent decisions of the Court of Criminal Appeal including; R v N, SH [2010] SASCFC 74; R v C, CA [2013] SASCFC 137; R v M, JJ (2013) 117 SASR 81; R v Ricciardi [2017] SASCFC 128; R v March [2014] SASCFC 54; R v Liddy (2002) 81 SASR 22; R v M, BJ (2011) 110 SASR 22; R v Bridger [2003] SASC 180; R v C, G [2013] SASCFC 83, and R v Bonython-Wright [2013] 117 SASR 410.
I will need to discuss some of the dicta in those cases as those principles have been expressed in different terms.
As is plain s 34P(2) differentiates between two classes of permissible use of discreditable conduct. The first in s 34P(2)(a) does not rely upon propensity; while the second in s 34P(2)(b) does rely upon propensity as circumstantial evidence of a fact in issue.
In respect of the former the permissible use of the evidence must ‘substantially outweigh any prejudicial effect to the defendant’. In respect of the latter it must have ‘strong probative value having regard to the issue arising in the case’.
Section 34P(3) is of significance in the subject case. The Court must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use, so as to remove any appreciable risk of the evidence being used for that impermissible purpose. This subsection reflects the concerns expressed in respect of the pre statutory test in Pfennig v The Queen.[13]
[13] [1998] 182 CLR 461 at
This was recognised by McHugh J in Pfennig, supra at 531:
In other cases involving similar facts, the accused may have admitted the facts of a similar incident or the facts may clearly point to wrongdoing on the part of the accused in relation to that incident.
In such case there is a risk that instead of relying on probability reasoning, the jury will simply rely on the propensity of the accused as revealed by the incident that is admitted or proved. It follows that the nature of the prejudice and the degree of risk of an unfair trial will always depend on the facts of each case.
In Phillip v The Queen,[14] the High Court set out the principles at common law for cross-admissibility as follows:
The admission of similar fact evidence is exceptional and requires a strong degree of probative force. The probative force must be sufficiently great to make it just to admit the evidence – it must have a specific connection with the commission of the offence charged.
[14] [2006] HCA 4.
In Huggins v State of WA, supra at p122, the Court of Appeal (WA) considered a case involving a large number of counts. The Court approved the tender into evidence of the accused’s plea of guilty to a previous offence because it had significant probative value as propensity evidence compared to the high degree of risk of an unfair trial. The Court concluded that it ought to be admitted on a public interest basis such ‘that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial’.
Before I turn to the decisions of the Court of Criminal Appeal in this State I mention the case of Rapson v The Queen [2014] VSCA 216, which was referred to by counsel for the defendant.
The difficulty with that case is that the Court of Appeal (Vic) expressly applied the test in the case of Velkoski v The Queen, supra, which test, as I have noted was held by the High Court to be too restrictive.
In R v N, SH, supra, where separate trials were ordered in respect of two complainants, it was not because there were only the two complainants, but because the sexual abuse against each complainant was markedly different, as were the ages of each of them.
It is convenient to refer to the dicta of Kourakis CJ in R v C, CA, supra. This case involved three complainants. His Honour held that the evidence of one complainant was not cross admissible in relation to the other two, and the counts against the other two should have been severed.
His Honour identified that there are two bases for cross-admissibility based on different types of reasoning.

The first is the ‘similarity of accounts’ basis where the probative force lies in the improbability of persons independently concocting stories or colluding. The second is the 'propensity or proclivity basis’. I will set out the relevant parts of His Honours reasons at [57]-[61] and [65]-[70].
The clearest basis for the cross-admissibility of the evidence of offending against each complainant on the trial of the offending against the others is that the testimonial accounts of the complainants demonstrate the improbability that the conduct of which they complained was concocted or imagined by each of them independently of the others. I will refer to that basis for admissibility as the “similarity of account” basis and to evidence admitted for that purpose as “similarity of account evidence”. The strong probative force of similarity of account evidence was explained in Hoch v The Queen (Hoch).[42] It arises out of the improbability of persons independently imagining or concocting stories with a high degree of similarity of detail.
…
The question governing the admissibility of similarity of account evidence is therefore whether the accounts of the complainants have such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect. The prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender. That prejudice may distract a jury from any defects and frailties in the evidence directly bearing on the offences charged and predispose them to convict irrespective of the strength of that evidence. It is important therefore that the similarity of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score. The prejudice engendered by multiple counts relating to different complainants poses less risk on the issue of collusion. A defence of collusion undermines the very similarity on which the prosecution relies. The question of collusion can be evaluated relatively free of the prejudice engendered by the allegations.
The question is not whether the accounts establish a unique modus operandi, nor is the assessment of the similarities to be approached in the abstract by counting and comparing points of similarity and dissimilarity which have no bearing on the improbability of independent fabrication like the fact that the complainants did not live with their fathers. The question is whether as a matter of human experience the levels of similarity between the complaints might be expected if the complainants for reasons, conscious or sub-conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged.
The similarities between the accounts of MA and MG are many.^[44] It is highly improbable that their accounts would bear that degree of similarity if they were independently fabricated. For reasons which are more conveniently given below in [83] the use of the evidence for similarity of account purposes is sufficiently distinct and separate from the impermissible use of that evidence to conclude that the probative value of the evidence outweighs its prejudicial effect. The evidence was cross-admissible and a joint trial was therefore necessary pursuant to s 278(2a) of the CLCA.
The probative value of the similarity in SG’s account of the more limited offending against him, with the accounts of MG and MA, is not as strong as the similarities between their accounts. However, I take the view that the common features identified in [62] above are capable of strongly excluding the possibility that SG independently concocted his complaint. In particular, on his account, MG was present on many of the occasions described by SG, and MG’s evidence was to a similar effect.^[45] It is very unlikely that they concocted those events independently of each other. I will deal with the ultimate, and more difficult, question of whether the probative value of SG’s evidence, when used for similarity of account purposes, outweighs its prejudicial effect after discussing the second cross-admissible permissible use of the evidence of the complainants.
The second basis for cross-admissibility is that the evidence showed the appellant to have a particular propensity to engage in the conduct described by the complainants. I should first explain further what I mean by a propensity basis for cross-admissibility. It is that the evidence disclosed a proclivity on the part of the appellant to abuse the access he had to his son’s friends for the purposes of gratifying his paedophilic desires. The reasoning in support of a finding of guilt based on the demonstration of a particular propensity differs markedly from similarity of account reasoning. I have explained the latter in [57]-[60] above. The former involves three essential steps in the circumstances of this case. The first step is to determine whether the evidence proves beyond reasonable doubt that the appellant committed sexual offences or other discreditable conduct against any one of the three complainants. If the jury are so satisfied with respect to at least one of the complainants, the second step is to determine whether the offending, in the context of the wider conduct, shows an innate behavioural proclivity to commit offences of the kind committed against the other complainants. If the jury are so satisfied, the third step is to take that particular propensity into account, together with the evidence directly bearing on the other counts, in determining whether or not the totality of the evidence has proved the offending alleged against either one, or both, of the remaining complainants.
I am satisfied that the evidence of offending against either of MA and MG was capable, if accepted, of establishing an embedded sexual proclivity to engage in sexual relations of the kind described by them with pubescent boys. The duration of the sexual relationship the appellant maintained with each of them, and the frequency and nature of his sexual activity, gave the evidence strong probative force as circumstantial evidence of sexual motivation to commit offences of that kind against other pubescent boys.
The particular features of the offending which show a proclivity which extends beyond a singular relationship are the opportunistic nature of the offences and the almost exclusively sexual focus of the relationships. Moreover, in accordance with the reasoning explained by Wells J in Sutton, the intermediate conclusion that the proclivity manifested by the conduct against each of the complainants is not confined to that complainant can be reached by having regard to the evidence of the offending against the other complainant.
The evidence of MA and MG about the particular combination of fellatio and self masturbation frequently engaged in by the appellant also shows a strong disposition for a particular form of sexual gratification. That aspect of their testimony, in the context of the whole of the evidence, is in itself strongly probative.
I am also satisfied that the evidence of the offending against MA and MG shows a proclivity to commit offences of the kind committed against SG whenever an opportunity to do so arose. The opportunistic advantage taken when the complainants showered to commit offences of that kind is a strong feature of the evidence of MA and MG.
On the other hand, I am not persuaded that the evidence of the much more limited conduct with SG was capable of establishing a proclivity that would have strong probative force as circumstantial evidence of the charged offences against MA and MG. Looking at the offending against SG retrospectively, and on the assumption that the offences were committed against MG and MA, it may well be concluded that the offending against SG was a manifestation of the same propensity which led to the offending against MG and MA. However, for the purposes of admissibility the question is whether the evidence of the offending against SG, standing alone, manifests a propensity which is strongly probative of the greater offending against MG and MA. I am not satisfied that it does.
It now remains to evaluate whether the probative force of the evidence, both as similarity of account evidence and as evidence of predisposition, outweighs the prejudicial effect. Here the terms of s 34P(3) of the Evidence Act require careful consideration. That subsection provides:
In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
The mischief to which s 34P(3) of the Evidence Act is directed is the risk that the tribunal of fact, whether a judge or jury, will be distracted by the impermissible use of evidence if that use cannot be sufficiently differentiated from its permissible use. The uses referred to are forms of reasoning. Section 34P of the Evidence Act prohibits reasoning that a person who has engaged in discreditable conduct is, by reason of that bare fact alone, more likely than not to have committed the offence. Put another way, it is impermissible to reason that a person who has engaged in any form of discreditable conduct is likely to have a predisposition to commit the crime charged whether or not, as a matter of human experience, there is any probative connection between the conduct and the crime by way of predisposition or proclivity. I will refer to the impermissible reasoning as “bad person” reasoning.
The permissible forms of reasoning allowed by s 34P of the Evidence Act are, speaking broadly, twofold. First, if the discreditable conduct evidence is strongly probative of the existence of a behavioural proclivity to engage in conduct of the kind charged whenever an opportunity arises, it is permissible to use that evidence as an item of circumstantial evidence indicating guilt.^[47] The second form of reasoning is improbability reasoning which has a probative force independent of any proclivity. The improbability can arise from a wide range of circumstances and in many different ways. Common examples include “cauliflower ear” similarity in modus operandi,^[48] coincidental presence or involvement in the place or circumstances of the crime for which an innocent explanation is improbable,^[49] and the improbability of complainants independently fabricating similar accounts.^[50]
In my view, s 34P(3) of the Evidence Act is more likely to weigh against the admissibility of discreditable conduct evidence when the permissible form of reasoning is based on a propensity or disposition which is not powerfully established by the evidence of discreditable conduct….
I acknowledge that disapproval of the conduct alleged may distract from a dispassionate appraisal of the weight of that evidence for that purpose but that is a risk in the appraisal of evidence generally, which is not exacerbated by overlap between the permissible and impermissible uses of the evidence.
On the alternative permissible use of the discreditable conduct evidence to show a proclivity to commit sexual offences against the school friends of the appellant’s son, there is much less separation between the impermissible and permissible uses of the evidence. The only point of distinction is the intermediate step of finding that the discreditable conduct evidences an innate proclivity to commit offences of the kind committed against the complainants whenever the opportunity arises. In the case of the charges relating to MG and MA there is no appreciable risk of misuse of the evidence of discreditable conduct committed against MG and MA because the offending against each of them is similar in both nature and frequency, and strongly shows a proclivity on the appellant’s part to engage in sexual activity of a particular kind with his son’s friends. Nor is there a risk of misuse of the evidence of offending against MG and MA in the case against SG. The appellant’s disposition to shower with and engage in genital fondling with his son’s friends when the opportunity arose is very strongly manifested by the evidence of the conduct against MG and MA. Importantly, the nature of the alleged offending against SG does not extend beyond the disposition manifest by the evidence of MG and MA, indeed it is a common subset of the conduct alleged against all three complainants. Finally, the discreditable conduct is of a relatively peculiar kind. All three considerations just referred to leave very little room to engage in impermissible “bad person” reasoning from the evidence of the offending against MG and MA, other than by inferring an innate propensity or disposition from that evidence.
However, the same cannot be said of the weight of propensity revealed by the evidence of the touching of SG in the shower in proving the anal and oral sexual intercourse alleged with respect to MG and MA.^[57] For the reasons given in [74] above, the evidence of SG is not probative of a predisposition to commit the more extensive sexual offending described in the evidence of MG and MA. If the evidence of SG were admitted in the trial of the charges relating to MG and MA for its, permissible, similarity of account purpose there is a very real risk that the jury would also engage in, impermissible, “bad person” reasoning from the evidence of SG.
A Judge would, of course, direct the jury, or himself or herself, not to reason in that way. In the ordinary course, because similarity of account reasoning is so clearly distinct from predisposition reasoning, that warning is likely to sufficiently constrain the prejudicial effect of admitting the evidence to allow for its admission. However, in this case, because the evidence of MG and MA is also admissible for predisposition purposes, the jury could not be given a blanket warning against reasoning that the accused is the sort of person who might commit several offences of the kind described by MG and MA. Indeed, the jury must be directed on the use of the evidence of MG and MA for the very purpose of showing a proclivity to commit the particular form of sexual abuse they described.
In considering the predisposition manifest in the evidence of MG and MA it is very difficult, for a judge or jury, to put the evidence of SG completely to one side. The evidence has the capacity to prejudice the evaluation of the evidence of MG and MA for propensity purposes because of the strong human tendency to reason retrospectively to the effect that the appellant’s conduct against SG was a manifestation of the tendency suggested by the conduct against MG and MA and that the only reason the appellant did not offend in that way against SG was that the appellant was not given sufficient opportunity to indulge his proclivity with SG. Consciously or subconsciously, the evidence of the offending against SG will then be used to reinforce the inference of a particular propensity arising out of the evidence of MG and MA. Fallacious retrospective reasoning of that kind is common to trained and lay minds alike. The evidence of SG, for that purpose, is not strongly probative and easily conflated with “bad person” reasoning.
The prejudicial effect of the evidence of SG in the prosecution case against MG and MA is therefore strong. On the other hand, it does not have strong probative force as propensity evidence and the similarity of account use of the evidence, although strong, is not overwhelming because the offending against SG did not include the oral and anal intercourse alleged by MG and MA.^[58] For the above reasons, I conclude that the probative value of the evidence of SG in the trial of the charges against MG and MA does not outweigh its prejudicial effect.
It follows that the evidence of offending against MA was admissible against the appellant on the counts charging offending against MG and SG, and the evidence of offending against MG was admissible on the counts charging offending against MA and SG, on both the similarity of account use of the evidence and its use as tendency evidence. However the evidence of SG was inadmissible in the trial of offences against MG and MA because, despite its permissible similarity of account use, the appreciable risk that the jury would also use the evidence, impermissibly, as “bad person” reasoning demonstrating a proclivity to commit the offences committed against MG and MA, outweighed its probative value. The convictions of MG and MA must therefore be set aside because of the wrongful admission of the evidence of the offending against SG.
I acknowledge that the effect of my analysis is that the great body of evidence of the appellant’s offending against MG and MA is admissible on the trial of the single offence against SG. The sheer volume of the former offending might, in one sense, be said to “swamp” the evidence directly bearing on the charge of the single offence against SG. However, for the reasons which I have given to the extent that the evidence is overwhelming, it is so because it has much probative force. The proclivity and similarity of account uses of that evidence convert the case against the appellant from one of “oath against oath” to a strong case based on both circumstantial and direct evidence.
In R v March, supra, the Court noted at [24], that the Chief Justice in R v C, CA, should not be taken to have precluded the overlap of the two forms of reasoning.
In that case the basis found by the Court was ‘the improbability of the complainants independently imagining or concocting stories with a high degree of similarity and detail. However it also said that there was another basis for admissibility namely ‘a propensity to commit a highly specific type of crime’ – in that case, ‘sexual assaults in a brazen fashion where detection was seemingly probable and where access to the child was facilitated by the accused’s status’.
I also refer to the case of R v Ricciardi, supra, which concerned the question of the cross-admissibility of the evidence of two complainants, who were sisters. At [52]-[54] the Court affirmed the decision of the Chief Justice in R v M, BJ, supra:
I pointed out that similarity in account is not confined to a study of the very sexual acts alleged. It also comprehends the broader circumstances in which the conduct occurs; there, the family setting. Here, an important similarity is that the allegations were made by sisters of a similar age to whom the appellant had extensive access as a trusted family member, he being asked to take on extra duties towards the girls because of their parents’ work commitments. The nature of that access was an important matter and both complainants gave broadly similar evidence about it. Against those features the precise nature of the offending was of less significance. Added to that was the “garage incident” about which both gave evidence, both referring to the striking detail of the appellant claiming to have been checking L’s teeth. The evidence of both witnesses about this would have been admissible in any separate trial of the charges relating to L. If there were to be such a trial and D were to give evidence in it, then arguably the trier of fact would be entitled to know if D made similar allegations against the appellant.
In my view, seen as a whole, the allegations were similar enough to raise the improbability of both complainants giving an untruthful account of the appellant’s conduct.
The evidence of all three charges was clearly cross-admissible. Its probative value substantially outweighed any prejudicial effect it might have had: s 34P(2)(a) of the Evidence Act.
The cross-admissibility of the respective evidence of the two complainants
I set out a synopsis of the proposed evidence of the two complainants T and M, and that of each of the proposed witnesses B; P and R. This of course reflects their statements. It may be at trial the evidence will differ.
Factual Summary of the evidence of the two complainants
·T

T is 2 years older than his brother M. The defendant had a close relationship with the parents of T and M, and that relationship included an involvement with a local church community at Victor Harbor. The accused operated a café in Victor Harbor. When aged about 13 years, T was employed by the defendant on one night per week. His sister had previously been employed by the defendant. T worked for about 6 months without any sexual approach by the defendant. The charged offences against the defendant involving T, allegedly occurred at a convent at Aldgate. The defendant invited T to help him with a catering event, which required them both to sleep in the defendant’s caravan. T alleges that on the first night he was obliged to share a bed with the defendant. At that time the defendant is alleged to have fondled T’s penis. It is also alleged that the defendant exposed his own penis to T. He masturbated T and touched his anus.
After that night nothing further occurred at the convent, nor at the café. T continued to work with the defendant at the Victor Harbor café for a further 12 months before he left to obtain employment elsewhere at age 15 years.
·M
M alleges that he had a telephone discussion with T while T was at the convent. Subsequent to T leaving the defendant’s employment M was engaged to work for him in T’s place at the café. On the first occasion that he worked, and after the customers and other employee had left, M remained to clean the premises. M was left alone with the defendant who exposed his penis to him. The defendant discussed the question of masturbation with him amongst other matters including quoting from scripture. The defendant exposed his penis, rubbed it and flicked it until it became erect. M felt the accused’s hands on his upper torso before the defendant undid M’s jeans. The defendant then placed his hands in M’s underwear and touched M’s penis. The defendant then placed his hands on M’s genitals fondling his penis and his bottom. The defendant placed his finger in the complainant’s anus. M immediately left the premises and never returned.
Factual Summary of the proposed discreditable conduct evidence of the witnesses B, P and R
·B
B had commenced employment with the defendant at his café in late 1989 and continued to work until October 1991 on every Friday night and Saturday and Sunday morning. He asserts that the defendant, in about December 1989, in the café, fondled his penis on the outside of his clothes. Shortly after that date the defendant fondled B’s genitals and penis and masturbated him before performing fellatio upon him.
Thereafter the defendant and B would perform fellatio upon each other on a fortnightly basis as well as engage in mutual masturbation, in the staff toilet at the back of the café, and at car parks or in the defendant’s van.
In April 1990 B undertook work for the defendant, catering at the convent at Aldgate with the defendant. He and the defendant would mutually masturbate each other and engage in oral sex. On one occasion the defendant placed his finger into B’s anus.
On a second trip to the convent in September 1990, when B was aged 16, the defendant penetrated B’s anus with his finger and then his penis. Thereafter until B resigned from his employment, the defendant and B maintained mutual masturbation and oral sex.
It is an admitted fact that 6 of the 9 counts to which the defendant pleaded guilty, involved B.
·P
P commenced employment at the defendant’s café at Victor Harbor in about 1988, when he was aged 13. He met the defendant through friends of the local church. The defendant started to make comments of a sexual nature to him. After working with the accused at the café for about 4 months the defendant requested P to attend a camp at Stirling where they stayed in a campervan. On the second night the defendant undressed to his underpants. While sharing a bunk, he touched P on the top of his clothing in the region of his penis. Thereafter the defendant continued to place his hand inside P’s pants and masturbated him. The defendant then took his own underpants off and masturbated himself in front of P. The defendant performed fellatio upon P. Nothing further happened while at the camp and P continued to work for the defendant at the café. In about September or October of 1990 the defendant took P to a camp at Normanville where he placed his hand on his genital area and moved his hand around. At another camp the defendant would place his hands inside P’s pants and touch him on the penis. He would masturbate and ejaculate on about 20 occasions. He would quote from the bible.
·R
R commenced working at the café in about 1989 when he was aged 13 years.
The defendant would make sex related jokes to him.
In April 1990, while driving R home, the defendant placed his hand on R’s groin and rubbed it. Approximately 8 months later when R and the defendant were alone in the café’s kitchen, the defendant placed his hands over R’s clothes and grabbed him by the penis. R yelled at him to stop, and the defendant did not touch him again.
Submissions of Counsel
I turn to the respective submissions of counsel.
Counsel for the defendant, Miss Fuller, submitted that the court should approach the question of the severance of counts 1 to 3, in respect of T, from counts 4 to 7, in respect of M, before considering the admissibility of discreditable conduct evidence in relation to the alleged prior offending involving the complainants R, P and B. She referred to the fact that in respect of the particular complainants, no uncharged acts were going to be led by way of discreditable conduct evidence against either of the complainants T or M.
She highlighted the differences between the allegations of T and M. In particular the one off alleged event involving T had occurred at the convent many months after T had commenced employment. Nothing occurred thereafter. By contrast the alleged event involving M had occurred at the café on the first occasion that M was employed.
The prosecution submitted that cross-admissibility relied on striking similarity of the respective counts of T and M. In R v Bonython-Wright,[15] the Court said the question governing the admissibility of similarity of account evidence is therefore whether the accounts of the complainants have such a degree of similarity that the hypothesis that they were independently fabricated, imagined or otherwise were mistaken about the offences for reasons peculiar to them, is so improbable that the probative value of the evidence substantially outweighs it prejudicial effect.
[15] (2013) 117 SASR 410 at [48]-[50].
She submitted that the accounts of T & M do not fall within that test.
Ms Fuller submitted and I accept that the offences involving T are alleged to have occurred on the one occasion at Aldgate between 22 September 1991 and 3 October 1991. While the allegations in respect of counts 4 – 7 are also said to have occurred on one occasion, they allegedly occurred in the café at Victor Harbor. She submitted that it was clear that M had no involvement with the accused at that time of the alleged counts involving T, and could give no evidence about it.
She invited the Court to conclude that there was no basis for the prosecution submission that the defendant had a strong sexual interest in his young male employees, and that he was driven to act on his sexual impulses in particular circumstances and in a particular manner.
She submitted that the prosecution submission was not borne out by the evidence. Further the evidence of B is entirely different to the others. It involved the majority of the charges to which he pleaded guilty. It was an ongoing relationship between B and the defendant. She submitted that there was nothing similar in respect of the accounts of M and T respectively. Indeed M had made reference to the accused engaging in religious ‘babble’ and quoting from scripture which was not present in the case of T.
She submitted that the respective acts the subject of counts 1 to 3 on the one hand and 4 to 7 on the other are separate and distinct and the acts themselves are hardly unique involving the touching of the penis and self-masturbation. Ms Fuller submitted that the respective accounts are not sufficiently similar.
She submitted that in consequence the prosecution had not specified particular circumstances, and in its absence there is only a general disposition.
Counsel for the prosecution, Ms Agnew submitted that the evidence of each complainant was cross admissible, on each of the two bases identified by the Chief Justice in R v C, CA, supra. She submitted that the evidence fell within the test of ‘similarity of account’. B, P and R established that the accused had a strong sexual interest in his young male employees and was driven to act on his sexual impulses.
She referred to R v M, BJ,[16] in which the allegations were made by sisters of a similar age to whom the prisoner had extensive access as a trusted family member. The nature of that access was the important factor. Both complainants gave broadly similar evidence about it. Against those features, the precise nature of the offending was of less significance. In that case, the Court concluded that the allegations were similar enough to raise the improbability of both complainants giving an untruthful account of the appellant’s conduct.
[16] [2011] 110 SASR 1.
Ms Agnew submitted that the evidence of each complainant does not need to be precisely the same to be cross admissible. She referred to a number of cases in which there were marked factual disparities or differences in the relevant evidence.[17] She submitted that there were common features between the acts committed against each complainant, such as to disclose an underlying unity in the commission of the offences by the accused so as to render the evidence of each count cross admissible on every other count due to the improbability of events having occurred other than is alleged by the prosecution. She submitted that the permissible use of the evidence substantially outweighs any prejudicial effect that it may have on the accused and that with appropriate directions the permissible use can be kept sufficiently separate and distinct from any impermissible use so as to remove any appreciable risk of the evidence being used for impermissible use.
[17] Police v A, M R [2008] 101 SASR 557, R v Wallace [2008] 100 SASR 119, R v M, B J [2011] 110 SASR 1 and R v Liddy [2002] 81 SASR 22.
She referred to the following factors:
·The relationship between each complainant to the accused namely as his employees at the café.
·The respective age of the complainants, at the relevant time of each offending, namely about 14 years of age.
·That the accused had gained access to both complainants through his connection with their parents in their church community. This of itself minimised the risk that either complainant would complain to his parents. This risk was further reduced when T did not complain and M became employed.
·The nature of the offending commencing with touching on the penis and groin and that the offending did not continue on other occasions when each complainant made their objection clear.
·That the acts of the accused were accompanied by discussions about masturbation.
·The penetration of the anus with the finger as expressed by M and inferentially by T. She submitted that these features establish as a matter of common sense and experience the objective improbability of some event having occurred other than as alleged by the complainants such that to exclude the evidence would be in front common sense.
Discussion
·The application for separate trials
In my opinion the accounts of T and M are sufficiently similar to satisfy the similarity of accounts test. It does not matter that the respective events occurred at different places. In this case the probative force lies in the improbability of the two complainants independently concocting stories or colluding. While the alleged acts themselves are similar, it is not necessary that the evidence demonstrates striking similarity. Indeed it is enough that the similarity be sufficient to make the complaints by the two complainants inexplicable absent collusion. In my opinion the descriptions by the two complainants of their allegations against the defendant are inexplicable unless there has been collusion or concoction between them or that the allegations are true or coincidental.
In my opinion the evidence of the complainant M is cross admissible in respect of the counts involving T and the evidence of T is cross admissible in respect of the counts which relate to M.
Accordingly, I dismiss the application brought by the defendant that the trial of the counts in 1 to 3 in respect of T be heard separately from those in respect of counts 4 to 7 in respect of M. It can be kept sufficiently separate and distinct from an impermissible use for the purpose of s 34P(3) of the Act.
·The admissibility of the proposed evidence of B, P, and R
It is plain that for the purpose of s 34P of the Act the impermissible use in the subject matter is a disposition to commit crimes of a general sexual nature.
It is important when one turns to the question of a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue, to identify the particular propensity that was relied on by the prosecution. The prosecution asserted that the evidence of B, P, and R was permissible under s 34((2)(b) of the Act in respect of each of the 7 counts ‘to establish that the defendant had a strong sexual interest in his young male employees and to show that he was driven to act on his sexual impulses in particular circumstances and in a particular manner.
In my opinion this was stated ‘at a level of some generality’. As I have explained, it cannot be said that the defendant was driven to act on his sexual impulses in respect of T, in particular in his case a period of 6 months elapsed before there was any sexual attempt by the defendant. After the one occasion at Aldgate there was no further attempt despite T remaining employed for a further 12 months.
It cannot be said that the defendant was concerned that T might complain. The defendant remained close friends with T’s parents. Nothing was raised with him for many years. Indeed the lack of complaint may have led to him sexually abusing M on the first day, on the prosecution case.
In addition there is a lack of similarity in the accounts by B and P in particular. In counts between B and P it may be said that there was a particular propensity in that the defendant had a strong sexual interest in those two young male employees and that the defendant was driven to act on his sexual impulses. However that cannot be the same with respect to T and M.
There is no doubt that the evidence of B and P, and in particular, the admissions of the defendant to the charges relating to them, is otherwise highly probative, see R v March, supra, at [40]. But in my opinion the admission in this case would be highly prejudicial to the accused.
A jury would be overwhelmed by the evidence of B in particular. The offending was far more extensive than that involving T and M. It continued, apparently, consensually, for a long time.
I turn to s 34P(3) of the Act.
The mischief in that subsection is directed to the risk that the jury will be distracted by an impermissible use of the evidence of B and P for general propensity.
There is a real risk that a jury, however instructed, will reason that because the accused admittedly abused B and P, in particular, in even more serious circumstances, then he is likely to have committed the offences against T and M respectively.
In my opinion, contrary to s 34P(3) of the Evidence Act, any permissible evidence of B could not be kept sufficiently separate and distinct from the impermissible use (that being a general disposition to sexually abuse boys) so as to remove any appreciable risk of the evidence being used for that impermissible purpose.
In affirming a less restrictive test to cross-admissibility in Hughes v The Queen, supra, the High Court seemed to approve dicta in intermediate Courts to the effect that:
It is inevitable that reasonable minds might reach different conclusions on admissibility. This means that in marginal cases it might be difficult to know whether an appellate Court might take a different view of the significance of the tendency evidence from a trial Judge … the admissibility of tendency evidence is assessed based upon the evidence that witnesses are expected to give … in cases where the admissibility of tendency evidence is borderline, there may be risks if the actual evidence does not accord with the evidence as anticipated … [this risk] should be a matter taken into account by the prosecution in assessing, perhaps conservatively what tendency evidence it will rely on.
In my opinion the proposed evidence of B, P and R must be excluded.
There is no need to consider whether there is any other permissible use under s 34P(2)(b) of the Act. However in my opinion, on the proposed evidence of T and M respectively it may be open to the Court to conclude that there is a permissible propensity use – not a propensity to commit a general type of crime but to commit, in the case of T and M, a highly specific type of crime. That is to commit sexual assaults of a very similar nature upon T and M respectively where access to each child was facilitated by the defendant’s close relationship with their parents and their mutual involvement in their local church.
Whether this does give rise to such a permissible use within s 34P(2)(b) will of course be a matter for the trial Judge, and the evidence led at the time. The trial Judge will need to give; inter alia, directions as to the proper use of the evidence of T and M on each of the counts.
Orders
1. I refuse the defendant’s application for separate trials of the counts relating to T on the one hand, and M on the other.
2. I exclude the evidence of B, P, and R at the trial.